Gruber v. Kopf Builders9/20/2001
JUDGMENT: Appeal Dismissed. Motion No. 24405 to Dismiss is Granted.
This appeal arises out of a wrongful death action, filed for a second time pursuant to Ohio's Savings Statute, R.C. 2305.19. Plaintiff-appellant, Maxwell Jay Gruber, Sr. ( appellant ) individually and as the Administrator of the Estate of his son, Maxwell Gruber, a minor, deceased, filed a predecessor case, Trial Court No. 324049 ( Gruber I ) and the within action ( Gruber II ).
Prior to any review of appellant's specific assignments of error this Court is required to test the jurisdictional basis of this appeal, as challenged in the joint motion of appellees, Courtyard Condominium Unit Owner's Association, Inc. ( Courtyard ), Condominium A , and Renner Management, Inc. ( Renner ), to dismiss this appeal. Appellees claim that appellant's refiling of a second complaint in Gruber II was untimely under the strict time limitation set forth in R.C. 2305.19. We agree.
Issues pertaining to subject-matter jurisdiction are never waivable and this court, therefore, must raise the issue sua sponte. Proctor v. Giles (1980), 61 Ohio St.2d 211, 212-213 fn. 1, 400 N.E. 2d 393; Teramar v. Rodier Corp. (1987), 40 Ohio App.3d 39, 531 N.E. 2d 721. In reviewing the facts, we find that appellant did not timely file this case in the trial court within the one-year limitation period set forth in R.C. 2305.19.
The pertinent procedural history of both Gruber I and Gruber II is undisputed. Both of appellant's cases were filed as a result of the drowning death of his son in a retention basin located on the property of Courtyard. Gruber I was timely filed on January 17, 1997, within the two-year limitation period, which was triggered on January 28, 1995, the date of decedent's death. In Gruber I, appellant named the following defendants: The City of Westlake, the Martin Organization, Moenkhaus Management Group, Inc., Kopf Builders, Inc., Courtyard, Condominium A , Renner and Carl S. Andreano and Associates, Inc. On March 13, 1998, appellant voluntarily dismissed the City of Westlake, the Martin Organization, and Moenkhaus Management Group, Inc. in accordance with Rule 41(A). On April 1, 1998, appellant then voluntarily dismissed the remaining defendants, again pursuant to Rule 41(A).
Despite appellant's voluntary dismissal of the last set of defendants, the trial court, nonetheless, brought the parties together on April 13, 1998 and vacated the April 1, 1998 dismissal. Erroneously believing it had subject-matter jurisdiction, the court permitted the case to proceed, ultimately resulting in the court granting summary judgment to each remaining defendant on August 13, 1998.
Appellant appealed to this Court and assigned as error the trial court's granting each of the defendant's motions. Without reaching the merits of appellant's claimed errors, this Court dismissed the appeal on November 29, 1999, because the trial court did not have subject-matter jurisdiction over Gruber I after the April 1, 1998 voluntary dismissal. Gruber v. Kopf Builders, Inc., et al. (Nov. 4, 1999), Cuyahoga App. No. 75238, unreported, 1999 Ohio App. Lexis 5223.
On January 5, 2000, appellant filed Gruber II in the trial court as a brand new matter, which was then transferred back to the original trial judge in Gruber I. As before, appellees filed essentially the same motions for summary judgment, which were granted for a second time. This case appeals the trial court's granting appellees' motions for summary judgment in Gruber II. Appellees, Kopf Builders, Inc. and Courtyard, Condominium A, and Renner also filed motions for judgment on the pleadings, which motions were denied by the trial court. Appellees
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